Joint Letter on Investigation Into Killing of Kem Ley

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Samdech Kralahom Sar Kheng
Deputy Prime Minister and Minister of the Interior,
Royal Government of Cambodia
Phnom Penh

Re: Request to Create a Commission of Inquiry into the killing of Kem Ley

Dear Samdech Kralahom Sar Kheng,

Ahead of the one-year anniversary of the killing of Kem Ley, we, the undersigned, reiterate our concerns regarding the apparent lack of progress in investigating this case, as well as the inadequate investigation and trial of Oeuth Ang, the only person yet convicted or charged in relation to Kem Ley’s death.[1] In light of the inadequacy of the investigation, we urge the Royal Government of Cambodia (“RGC”) to establish an independent and impartial Commission of Inquiry, in line with international standards, to continue the investigation.

On 23 March 2017, immediately following the conviction of Oeuth Ang for the killing of Kem Ley, Oeuth Ang’s lawyer announced that an investigation was ongoing into two persons allegedly linked to the killing – a fact confirmed by the prosecutor Ly Sophana, who reportedly said that the case was split so that Oeuth Ang could be tried while the investigation into the other suspects continued.[2] Oeuth Ang’s lawyer reportedly suggested these persons are ‘Pou Lis’, who, according to Oeuth Ang’s testimony, introduced Oeuth Ang to Kem Ley, and a second man named ‘Chork’, who Oeuth Ang claimed had sold a handgun to him.[3] Moreover, broader questions about the motive for the killing remain unanswered. Despite this, neither the investigating judge nor the RGC have since publicly reported any progress regarding the supposed investigation or its subjects.[4]

The right to life is enshrined in the Cambodian Constitution and binding international human rights law, particularly the International Covenant on Civil and Political Rights, to which Cambodia is a State Party. The duty of states to protect that right to life includes a positive obligation on the RGC to ensure an impartial and thorough investigation into the killing of Kem Ley.[5] The United Nations Principles on the Effective Prevention and Investigation of Extralegal, Arbitrary and Summary Executions (“UN Principles”) clarify how this obligation is to be discharged and explicitly emphasize that states must launch a ‘thorough, prompt and impartial investigation of all suspected cases of extra-legal, arbitrary and summary executions.’[6] Furthermore, the UN’s Minnesota Protocol on the Investigation of Potentially Unlawful Death (2016) (“the Minnesota Protocol”) sets out the requirement of ‘government verification of the facts and public disclosure of the truth’ where there has been a violation to the right to life, as well as providing that ‘investigative processes and outcomes must be transparent, including through openness to the scrutiny of the general public and of victims’ families.’[7] The failure of the authorities to publicize information related to the allegedly ongoing investigation in Kem Ley’s case is non-compliant with these standards and gives the strong impression that little progress has been made in the investigation, if such an investigation is occurring at all.

We, the undersigned, also reiterate our concerns regarding the flawed trial of Oeuth Ang. The trial of Oeuth Ang was met with substantial criticism from international observers, who stated that the trial revealed the investigation to be seemingly deficient in several important respects.[8] The alleged motive for the murder, an unpaid debt of $3,000, was rejected by both the widow of Kem Ley, Bou Rachana, and the wife of Oeuth Ang, Hoeum Hout.[9] The credibility of this motive went unchallenged by the prosecution at trial and was not referenced in the trial judgement, while the possibility of further accomplices was not adequately addressed. The role of other actors identifiable in video evidence submitted to the court was apparently not subjected to scrutiny at either investigation or trial.[10] Moreover, following the charging of Oeuth Ang, reports emerged stating that senior district and military officials had a meeting with Oeuth Ang only a week before the killing of Kem Ley.[11] Representatives of the RGC have themselves cast doubt upon both Oeuth Ang’s motive[12] and testimony claiming he was acting alone.[13] These statements and reports, combined with the failure of the prosecution to pursue these lines of questioning at trial, suggests that the investigation and trial may have failed to meet the standards relating to the right to fair trial under domestic and international human rights law.

The RGC must now establish a Commission of Inquiry in order to conduct an independent, impartial, effective and transparent investigation into the killing. Principle 11 of the UN Principles calls for the establishment of a Commission of Inquiry when ‘the established investigative procedures are inadequate because of lack of expertise or impartiality, because of the importance of the matter or because of the apparent existence of a pattern of abuse, and in cases where there are complaints from the family of the victim about these inadequacies.’[14] The rejection of alleged motives by relatives of both Kem Ley and Oeuth Ang are likely to satisfy the requirement of ‘complaints from the family of the victim’ under the UN Principles.[15] For a Commission of Inquiry to be credible and to satisfy the requirements outlined under the UN Principles, ‘[m]embers of such a commission shall be chosen for their recognized impartiality, competence and independence as individuals. In particular, they shall be independent of any institution, agency or person that may be the subject of the inquiry’.[16]

Following the killing of Kem Ley, five UN human rights experts made similar calls for investigation, stating, “We call for a prompt, thorough and impartial investigation into the crime […] conducted by an independent body with no ties to the government.”[17] The deeply flawed nature of the investigation into the death of Kem Ley has not met international standards or Cambodia’s obligations under binding domestic and international law, and now necessitates the establishment of an independent Commission of Inquiry in order to facilitate justice for the family of the victim.

We, the undersigned, reiterate our concerns regarding the flawed investigation into the killing of Kem Ley and lack of progress in the subsequent investigations into the suspected accomplices to the killing, as well as our demand that the investigation now be taken over by an independent and impartial Commission of Inquiry.

Yours sincerely,

7amleh – Arab Center for Social Media Advancement

ActiveWatch - Media Monitoring Agency

Ad IDEM/Canadian Media Lawyers Association

Adil Soz - International Foundation for Protection of Freedom of Speech

[5] Article 32 of the Constitution of the Kingdom of Cambodia recognizes the right to life of all citizens. Furthermore, Article 31 formally recognizes international human rights law. Specifically, Article 6 and Article 2(3) of the International Covenant on Civil and Political Rights (“ICCPR”), to which the Kingdom of Cambodia (“Cambodia”) is a State Party, not only requires states to respect the right to life but also places a positive obligation on states to actively and adequately investigate all cases of murder. United Nations General Assembly, ‘International Covenant on Civil and Political Rights, 999 UNTS 171, 16 December 1966. <http://bit.ly/1bNeudO>

[6] United Nations Economic and Social Council, ‘Principles on the Effective Prevention and Investigation of Extralegal, Arbitrary and Summary Executions’, ECOSOC, resolution 1989/65 of 24 May 1989 1. <http://bit.ly/2fYtuvF>

[7] United Nations Human Rights Council, ‘Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions: The Minnesota Protocol on the Investigation of Potentially Unlawful Deaths: The Revised United Nations Manual on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions’, A/HRC/32/39/Add.4, June 2016.), Articles 10, 32, respectively. <http://bit.ly/2r6UXRH>